Opinion
No. 37368.
January 23, 1950.
1. Husband and wife — residence; repair of — recovery for, by husband.
In the absence of an express agreement to repay or of circumstances justifying the implication of such an agreement, a husband who has deserted his wife may not recover from her the expenses of the necessary repair of the residence owned by the wife and in which the parties theretofore and thereafter resided as husband and wife.
2. Husband and wife — support of wife — duty of husband.
A fundamental duty growing out of the marital relationship is that of the husband to support his wife, and the duty continues so long as the relationship continues.
3. Husband and wife — support of wife — suitable home — duty of husband respecting.
As a part of his duty to support her the husband must provide his wife with a place of abode as a suitable home measured in the light of modern standards as pertains to health, comfort and welfare, the normal living of persons of their social rank and standard of living within the means and earning power of the husband.
4. Husband and wife — duty of support — performance does not make wife money debtor.
A husband cannot convert his wife into his money debtor by performing his legal duty to support her, and consequently he may not recover of her the expenses of the necessary repair of a residence and theretofore and thereafter occupied by the parties as their home, although the residence was in fact owned by the wife.
Headnotes as approved by Roberds, J.
APPEAL from the chancery court of Yalobusha County; HERBERT HOLMES, Chancellor.
John Horan, for appellant.
I. The husband, appellee, answered the bill for divorce, filed by his wife, appellant, and then filed a cross-bill, praying for an equitable lien on their home, the title of which is in the wife, seeking to recover for money alleged to have been expended by him, for repairs on the home to make it suitable for habitation. Such cross-bill brought in new matter, neither necessary nor germane to defense and was demurrable. Dist. Grand Lodge G.U.O.F. v. Leorand, 92 Miss. 777, 46 So. 532; Stansel v. Hahn, 96 Miss. 16, 50 So. 696; Lowenstein et al. v. Hooker et al., 71 Miss. 102, 14 So. 531.
II. Because the proof showed that after the appellee left appellant, he left some of his personal effects at their home, and that a year had not expired between the date he removed such personal effects and the date the bill for divorce was filed, the court dismissed the original bill for divorce, and then continued the cause to another term, and at the next term heard the proof on the cross-bill, and having had the matter under advisement entered a decree in vacation on the cross-bill. In such case the dismissal of the original bill for divorce carried with it the dismissal of the cross-bill praying for a lien on the home of the parties, the title of which was in the wife. And the court was not authorized to try the issue on the cross-bill, but should have dismissed such cross-bill. 27 C.J.S. Section 291, p. 1114; Amis on Divorce and Separation, 410; Lowenstein et al. v. Hooker et al., 71 Miss. 102, 14 So. 531; Belcher v. Wilkerson, 54 Miss. 677; Wright v. Frank, 61 Miss. 32; Gilmer v. Felhour, 45 Miss. 627; Ladner v. Ogden, 31 Miss. 332.
III. The improvements were made on a house in the wife's name. In such case repairs or improvements made by the husband would be presumed a gift or the fulfillment of his duty to support his wife. 41 C.J.S. Sec. 158, p. 642; Schiaffina v. Christ, 96 Miss. 801, 51 So. 546; 41 C.J.S. Sec. 299, p. 784; 53 C.J.S. Sec. 4, p. 847; Fiscus v. Young, (Ala.) 8 So.2d 514; Roubacek v. Roubacek (Ala.), 21 So.2d 244; Krippendorf v. Wolf, 70 Miss. 81, 12 So. 26; Adair v. Schallenberger, C.C.A. (Ill.) 119 F.2d 1017; Ladd Tilton Bank v. Boyle, C.C.A. (Or.) 299 F. 56; McNaron v. McNaron (Ala.), 99 So. 116; Fire v. Fire, 192 S.W.2d 212; Gillette v. Gillette (Fla.), 24 So.2d 363; Baxter v. Baxter (Fla.), 30 So.2d 492.
IV. The lien sought to be established and enforced in the case at bar is one against the home of the wife, which home should have been furnished by the husband. It is the law in the State of Mississippi that the husband must furnish the wife with necessities convenient and suitable to their station in life. In such case that would include a place of abode — a place to live. Dunbar v. Meyer, 43 Miss. 679; East v. King, 77 Miss. 738, 27 So. 608; Gatling v. Wood, 149 Miss. 56, 115 So. 117; 41 C.J.S. Sec. 57, p. 523; McLemore v. Riley's Hospital, 197 Miss. 317, 20 So.2d 67.
We respectfully submit that the appellee failed to meet the burden placed on him by the pleadings to show how much money he expended and what for and to whom paid. A husband cannot recover from the wife for labor performed by him, nor can he contract for such labor. He, then, could have no labor lien against this house. He did not furnish the material. He admits that. The strongest proof or statement made by him or any of his witnesses is: "That they would sell his home and repair the wife's home, and live in the wife's house". That could not be such a contract which would ripen into a mortgage or resulting trust or establish a lien of any sort or character. That statement, in law, would simply amount to a gift. And the burden was on the husband to show otherwise. The record nowhere shows that there was any fraud practiced or any accident having taken place; nor does it show there was any agreement to execute a deed of trust, or any pretense of subrogation of any debt or liability on either side.
Kermit R. Cofer, and Creekmore Creekmore, for appellee.
On the question of whether this cross-bill is germane to appellant's divorce suit, Griffith's Mississippi Chancery Practice is cited, Section 381.
Amis' Divorce and Separation in Mississippi, at Section 292, declares that just such a claim as is asserted by the cross-bill, is a proper claim for settlement in a divorce suit.
The rule of law that the subject matter of this cross-bill is germane to suit for divorce was early announced in the case of Armstrong v. Armstrong, (1856) 32 Miss. 279.
Appellant next contends that the lower court did not have authority to hear the cross-bill after dismissal of the bill of complaint.
As appellee's first answer to this point, he says that no objection was ever raised to the retention of the cross-bill and its hearing and determination.
That the cross-bill was properly retained, heard, and determined is shown under the authority of Section 384, Griffith's Mississippi Chancery Practice.
Appellant says that the improvements were made on the wife's property, and that they are presumed to be a gift to her in the fulfillment of his duty to support her, and that the lien sought to be established and enforced is one against the home of the wife, which home should have been furnished by the husband, and that it is the duty of the husband to furnish the necessaries to his wife, including a place in which to live.
There is no room, in appellee's theory of the case, for presumption as to a gift.
Appellee alleged, and proved, that appellant proposed to appellee that he sell the land in which she had conveyed her interest to him, and use the proceeds in the improvement of her place where they were living.
The proof shows that there was no gift, that there was no intention to make a gift, but rather to make a good place to live, all as shown above, and by that sort of transaction appellant's property was enhanced in value by appellee's money. When this enhancement was accomplished, appellee's money was gone, and appellant sent him off to live with his children, away from the home he had improved as a place in which to live.
It was earnestly contended on the trial that all these facts gave rise to an equitable lien against the property enhanced in value, under the familiar rule that, under such circumstances as pleaded and proved in this case, the property of one may not be enhanced in value by the use of money or property of another without there arising an equitable lien against such property in favor of the persons whose money or property has thus enhanced the value of such property. Miller v. Pickens et al., 28 Miss. 182; 37 C.J., Sec. 27 (4), p. 321.
Appellant's contention that it was appellee's legal duty to afford her shelter is not sufficient to defeat this right to recovery for this rule does not mean that, when the wife shunts her husband off and away from home, the property constituting the shelter then becomes hers, or that the shelter property — because it is a shelter to her — is a gift to her. Here are people separated, parted at appellant's instance, suing because she wants to get a divorce to get appellee out of the way of a sale of the homestead property, including its increased value brought about by appellee's money. Certainly, a court of equity would not permit accomplishment of that sort of inequity.
Mrs. Henderson, the appellant, filed her bill in this cause against Mr. Henderson, the appellee, praying for a divorce on the ground of desertion. No other relief was asked. Mr. Henderson answered, denying desertion, and then, by cross-bill, set up that some two and a half years previously he, after an understanding with his wife, sold a house and lot which he owned in Water Valley, Mississippi, and applied $850.00 of the proceeds of that sale in the repair of a house belonging to his wife in Water Valley. He prayed for personal decree against his wife and that an equitable lien be impressed upon her property to secure payment of the money decree. He did not ask for a divorce.
Testimony was taken on the issues as made. At the close of the evidence the Chancellor, in an oral statement, indicated the proof showed desertion but the time of such desertion had not occurred a year previous to the filing of the bill, as required by the statute. Section 2735, Code 1942. Complainant then dismissed her bill without prejudice. Later there was a hearing on the cross-bill, resulting in a personal decree against Mrs. Henderson for $400.00, with a proviso that if the amount was not paid within sixty days, execution might issue to enforce collection thereof. No lien was impressed upon the property and Mr. Henderson did not appeal.
A number of errors are assigned and argued on this appeal but (Hn 1) we decide only one, and that is whether a personal decree could be entered against Mrs. Henderson under the circumstances of this case. We hold that it could not for two reasons:
The first reason is that Mr. Henderson does not claim, either in his pleadings or proof, that there was any agreement or understanding that Mrs. Henderson would repay him. There is no indication whatever she made any such promise or that either party considered it her personal obligation. No circumstance is disclosed justifying expectation on his part that this money would be repaid by his wife, or, for that matter, showing he had any such expectation. He seems to have conceived that idea after he had deserted his wife and left the home and she had filed suit for divorce.
The second reason is grounded in this state of affairs: It appears the parties had resided upon the property in question as their home. They went to California for a while. The property became dilapidated. It was upon their return to Mississippi the arrangement was made for the repair of the home so as to make it livable. They did again live therein and continued to do so as their home until Mr. Henderson moved out in the spring of 1946, leaving in the home some furniture, which he moved away in September thereafter, at which time the Chancellor thought the desertion took place. No divorce has been granted either party. They are yet man and wife. (Hn 2) One of the most fundamental duties growing out of the law of domestic relations is the duty of the husband to support the wife. That duty arises out of the marital relationship and continues during the existence of that relationship. (Hn 3) That obligation of support requires him to provide his wife with a place of abode as a suitable home, measured in the light of modern standards of civilization as pertains to health, comfort and welfare, the normal living of persons of their social rank and standard of living, within the means and earning power of the husband. 26 Am. Jur., Husband and Wife, Sections 337, 338; Runnels v. State, 154 Miss. 621, 122 So. 769; Fanchier v. Gammill, 155 Miss. 316, 124 So. 365. The repair of this property, so as to make it livable, was certainly within the means of the husband. He said he did it using part of his available funds. We might add, in this connection, that the evidence shows the wife used her hard-earned savings also in making these repairs. The proof is much more certain and definite she did do that, and of the nature and cost of the repairs made by her, than is the evidence that the husband made any repairs at all. (Hn 4) The husband cannot convert his wife into his money debtor by performing his legal duty to support her. Mr. Henderson is fortunate that they lived in property belonging to his wife, and he was only put to the expense of helping to repair it, instead of being required himself to acquire and make available a home for his wife.
Reversed, cross-bill of appellee dismissed and decree here for appellant.